HomeMy WebLinkAbout2012-2459.Union.13-03-01 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2012-2459, 2012-2460, 2012-2983
UNION# 12-116, 12-122, 12-137
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees Local 1750
(Union) Union
- and -
The Crown in Right of Ontario
(Workplace Safety and Insurance Board) Employer
BEFORE Felicity Briggs Vice-Chair
FOR THE UNION Emma Phillips
Sack Goldblatt Mitchell LLP
Counsel
FOR THE EMPLOYER Michael Smyth
Hicks Morley Hamilton Stewart Storie LLP
Counsel
HEARING January 7, 2013
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Decision
[1] Three grievances have been filed and referred to the Board alleging various
breaches of the lay-off provisions of the Collective Agreement. Two of the
outstanding matters are policy grievances and the third is a group grievance.
[2] The first allegation is regarding new expedited bumping practices that result
in “early” bumping before the expiration of an employee’s notice of lay-off
period. In the second grievance the Union asserts that the Employer has
failed to provide it with meaningful advance notice of lay-off. The final
grievance contends that the Employer has failed to abide by the terms of a
Memorandum of Agreement by laying-off employees as the result of a
transfer of the prevention mandate from Worker’s Safety Insurance Board
(“hereinafter referred to as “WSIB”) to the Ministry of Labour.
[3] On their face, the three grievances requested, by way of remedy:
• Rescind all notices to affected employees such that they are restored
to their jobs and any other redress the Vice Chair deems appropriate;
• Employer to immediately cease and desist the expedited bumping
process it has recently undertaken;
• Immediate stop the upcoming November 22, 2012 Art 6 redundancy
notices noting the employer has failed to provide advance notice; and
• Employer to follow established past practice under Article 6 and any
other subsections of the Collective Agreement – and any other redress
the Vice Chair deems appropriate.
[4] The Union is seeking a request for interim relief. This decision deals only
with that application.
[5] According to the application for interim relief sought, the Union is asking
this Board for an order to direct the Employer to:
• Allow the entire period notice to elapse before effecting a “bump” and
displacing other employees;
• “Freeze” the notice periods for those employees who have already
received notices of lay-off as the result of early bumps until the merits
of the grievance have been fully adjudicated;
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• “Freeze” the recall periods for any employee who has accepted a
Voluntary Exit package subsequent to being issued a notice of lay-off
as the result of early bumps until the merits of the grievance have
been fully adjudicated;
• Provide the Union with 20 working days advance notice of lay-offs,
including specific positions and names of individual employees who
the Employer intends to lay-off, and engage with the Union in
“meaningful consultation” about the lay-off, as required under Article
6.03 of the Collective Agreement;
• Cease laying-off employees as a result of the transfer of the
“Prevention” mandate to the Ministry of Labour, including employees
who have been bumped into new positions, in accordance with the
June 30, 2011 Memorandum of Agreement; and
• Any other remedy required to preserve past lay-off practices and to
mitigate the impact of the Employer’s new expedited bumping
practices.
[6] The Employer was of the view that this Board is without jurisdiction to
make interim orders because they are not procedural within the meaning of
section 48(12)(i) of the Ontario Labour Relations Act, SO 1995, c 1,
Schedule A. In the alternative, the application for interim relief should be
dismissed because there is no urgent need for the order. Further, the balance
of harm favours the Employer. Indeed, it was the Employer’s contention that
it would suffer considerable and irreparable harm if the interim relief were
granted. For the purposes of this application and without prejudice, the
Employer agreed that the Union has an arguable case on the merits.
[7] In advance of the hearing into this interim relief application the parties filed
declarations of fact. The Union provided a declaration from Harry Goslin,
President of the Ontario Compensation Union Canadian Union of Public
Employees, Local 1750 and Martim Gaspar, Vice President of OCEU. The
Employer provided a declaration from Gurjit Brar, Director of Labour
Relations, Lily Au, Human Resource Business Partner and Paul Simourd,
Associate Human Resources Business Partner.
[8] The declarations and exhibits put before this Board were considerable and
the parties spent an entire day of hearing arguing this interim motion. It is
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not my intention to set out all of the facts although a brief summary is
necessary and will be provided below.
[9] The relevant sections of the Collective Agreement are:
Article 6.02
The Employer will make “every reasonable effort” to
minimize or eliminate adverse effects of
organizational/technological changes on employees.
Article 6.03(c)
At least 20 working days in advance of issuing notices of
lay-off, the Employer and the Union will have
“meaningful discussion” and the Employer will provide
the Union with written notice of inter alia, the nature of
the organizational or technological change, the date of
the change, the number of positions affected, the job
titles affected, and the name and seniority date of
employees likely to be affected.
Article 6.05
The Employer must provide notice to employees affected
at least 130 days before the change will occur if the
employee’s job will be significantly changed or if the
employee will become redundant.
Article 6.05(a)
If the employee’s job has significantly changed, the
employee has the choice of accepting the new job (and
being provided with up to 8 months of retraining), or
declining the new job.
Article 6.05(b)
If the employee’s job has been declared redundant, the
employee will be offered an offer of Voluntary Exit or
placement opportunities under Articles 5 and 6. If the
employee does not accept the Voluntary Exit offer, the
Employer will select the most suitable of: a Voluntary
Exit Match, a Priority placement match under Article
5.03, or a displacement of a less senior bargaining unit
member (a bump).
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Article 6.05(c)
Each employee is entitled to two (2) Priority placements
as a result of a notice of lay-off.
Article 6.06(a)
If the most suitable match is a Voluntary Exit match, the
affected employee will be placed into that position and
the exiting employee will be provided with a Voluntary
Exit package.
Article 6.06(c)
If there is no suitable Voluntary Exit match or Priority
placement match, the employee is encouraged to request
matching to posted vacancies or Voluntary Exits no more
than two salary grades lower in their own location or
other geographic locations.
Article 6.06(e)
Employees have the right to remove themselves, once
only, from a Priority match during the 60 day trial period
and be considered again for Priority placement.
Article 6.06(g)
Where there is no position in the current geographic
location at the employee’s current salary grade and the
employee is willing to relocate, the Employer will pay
the costs of relocation to any vacancy in the province that
is no more than two salary grades lower than the
employee’s current salary grade.
Article 6.07
If the most suitable option is to displace an employee
with less seniority, the Employer will displace the least
senior incumbent within the current geographic location
following an agreed upon protocol.
Article 6.07(c)
Where no position is available in the employee’s current
geographic location and the employee has expressed a
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wish to relocate, the Employer will also consider
bumping employees in other geographic areas.
Article 6.08
An employee who is moved into a lower salary grade
position as a result of a notice of lay-off will not have his
or her salary reduced. The employee will maintain his or
her current salary until the salary falls within the salary
range of the new job. The employee will receive the next
1 year general increase.
[10] The Memorandum of Agreement referred to by the Union was signed on
June 30, 2011 and is attached to the Collective Agreement. It was negotiated
after the Government of Ontario announced that it would be transferring the
health and safety prevention function of the WSIB to the Ministry of Labour.
The relevant portion of that agreement stated:
No staff permanently employed as of the date of signing
of the Collective Agreement will be laid off as a result of
the transfer of the prevention mandate to the Ministry of
Labour.
[11] It was an uncontested fact that until the fall of 2012 when an employee
received notice of lay-off, the Employer waited until the end of the
employee’s notice period before instituting a bump. This practice allowed
for “Priority placement”, posting into a vacancy that was caused by various
circumstances such as retirements, resignations transfers or other employees
electing to take Voluntary Exit packages.
[12] Prior to the signing of this Collective Agreement, the parties had negotiated
guidelines that stated that the Employer will not effect a bump until the
employee’s notice of lay-off period has been nearly exhausted.
[13] In early 2012 the parties met and the Employer announced that it had a new
strategic plan for becoming “more streamlined and efficient”. This plan
would result in the reduction of employees needed to deliver the service. The
Union was given a list of 160 employees the Employer thought would be
affected by the organizational change.
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[14] In February of 2012 it became apparent to the Union that the Employer
intended to change its practice regarding the lay-off period. The parties held
discussions about this matter through the spring and summer of 2012.
[15] Since that time employees who have received lay-off notices have been
bumped into new positions during the period of their lay-off notice. Further
notices were issued as the result of these bumps. In addition to the
employees who have been bumped, at least two employees have accepted
Voluntary Exit offers and their employment has been terminated.
[16] As noted above, the Employer conceded that in previous instances of lay-
offs, it did wait until the notice period had almost elapsed before displacing
other employees. However, it was contended that in those situations the
number of employees affected was “substantially less than the number of
employees affected in 2012 as the WSIB goes through its transformation”.
Those lay-offs took place under a different business plan.
[17] The Union set out a number of individual fact situations in its declaration
documents. In its view, those circumstances reveal a violation of the long
standing practice and the Collective Agreement.
UNION SUBMISSIONS
[18] Ms. Phillips, for the Union, contended that the use of the full notice period is
necessary to provide the affected employee every opportunity to find a
suitable position before causing another employee the unnecessary angst of
being bumped. The full notice period provides an opportunity for “Priority
Placement” or to retrain, relocate or apply for a vacancy two salary grades
lower. These options minimize the effect of organizational changes and
workplace disruption. For example, in the case of the lay-off where notice
was given in February of 2012, a number of employees found priority
placements on or after the 127th day of their notice period.
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[19] In September of 2012 the Employer instituted a new expedited bumping
practice whereby employees can be bumped at any time during the notice
period. According to the Union, this new practice causes a chain reaction of
numerous bumps and Voluntary Exits that would not otherwise have
occurred had the Employer followed its old practice. It was suggested that
notices of lay-off are “stacked up” and “excelerated” causing enormous
disruption thereby allowing the Employer to lay-off the lowest seniority
employees more quickly thereby forcing them to take a Voluntary Exit
because there are no lower seniority employees to bump.
[20] The Union urged that the interim relief order is essential. This chain reaction
caused by the Employer’s actions is creating lay-offs that might otherwise
not take place because there is no way to determine if the employees will
find other positions during the notice period. If the Union is successful in the
litigation of these grievances, which will take many days to hear, it will be
very difficult, if not impossible, to unwind the chain of displacements.
Indeed, many employees will no longer be employees having taken a
Voluntary Exit.
[21] Regarding the Union’s request that the Employer be ordered to provide
advance notice and engage in meaningful discussion, it was urged that
minimizing of the adverse affects of the organizational change can only take
place when the Union is in receipt of all the facts including the names of the
affected employees and the specific positions that will be laid off. At an
October 24, 2012 meeting the parties had some discussion but failed to agree
on the extent of possibly affected employees. Ultimately the Employer told
the Union that almost the entire bargaining unit was potentially affected.
This “blanket notice” was a “radical departure” from the past practice
according to the declaration of Mr. Goslin. It was submitted by the Union
that this Employer action ensures that the Union cannot best protect the
interest of its members and makes a mockery of “meaningful discussion”.
The Union is foreclosed from creating or proposing options in an effort
mitigate or eliminate the adverse effects.
[22] Regarding the third grievance, the Union asserted that seven of the
employees protected by the Memorandum of Agreement were also part of a
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large group who were on a list of employees to be laid off. When the Union
protested this was a violation of the Memorandum of Agreement, the WSIB
altered their notice stating that their positions had ceased to exist and they
were to choose one of two options: they could secure a position through
Priority Placement, bump another employee or accept a Voluntary Exit
package. They have been treated like all others in the new expedited process.
[23] According to the declaration of Mr. Goslin, the interim relief is needed to
ensure that irreparable harm does not occur. Those harms include:
• Emotional and psychological stress of being made redundant and
being removed from their jobs before the notice period has expired;
• The stress of being placed into new positions, adjusting to new
responsibilities with potentially new management and colleagues;
• Economic hardship of lost earnings resulting from being placed at
lower salary grades or from having employment terminated;
• Relocation disruption;
• Negative impact on pensionable earnings from lower salary grade or
early retirement;
• Adverse impact on the Union’s ability to protect its members due to
expedited bumping, loss of meaningful discussion and insufficient
advance notice;
• More improper lay-offs undertaken during the litigation of this matter.
[24] The Union took the position that there would be negligible harm done to the
Employer if the application were granted. Even if there is some economic
hardship to the Employer as the result of the interim relief, it is a type of
inconvenience that every employer faces on an ongoing basis. Those
operational costs are far outweighed by the individual worries for the
employees improperly laid-off. If the grievances fail on the merits, the
Employer can bring about its new practice. However, in the meantime the
status quo should prevail so that no harm is done.
[25] The Union relied upon Re The Crown in Right of Ontario (Ministry of
Labour) and OPSEU (Nield) GSB#1471/96 (Roberts); Ontario v. OPSEU
[1997] O.J. No. 427 (Div. Ct); Re The Crown in Right of Ontario
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(Ministry of Health) and OPSEU (Belanger) GSB #976/93 (Kaufman);
Re The Crown in Right of Ontario (Management Board Secretariat)
and OPSEU GSB#0001/03 (Stewart); Re The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) and OPSEU
(Ranger) GSB#2002-2375 (Leighton); Re The Crown in Right of Ontario
(Ministry of Government Services and AMAPCEO and OPSEU
GSB#2003-0001 (Stewart) (March 4 2009); Re The Crown in Right of
Ontario (Ministry of Government Services and AMAPCEO and
OPSEU GSB#2003-0001 (Stewart) (February 16, 2010); Re The Crown in
Right of Ontario (Ministry of Government Services) and AMAPCEO
and OPSEU GSB#2003-0001 (Stewart) (March 1, 2010); Re The Crown
in Right of Ontario (Ministry of Government Services) and AMAPCEO
and OPSEU GSB#2003-0001 (Stewart) (May 20 2010); Re The Crown in
Right of Ontario (Ministry of Correctional Services and OPSEU
(Sammy et al) GSB#2001-0224 (Harris); Re Canadian Broadcasting
Corp. and C.E.P. (Knopf) (1996), 51 C.L.A.S. 245; Re York University
and YUFA (July 5, 1996), unreported (Knopf); Re Toronto East General
Hospital and Ontario Nurses’ Association [2012] O.L.A.A. No. 288
(Stephens); Re Community Nursing Home and Ontario Nurses’
Association (2008), 171 L.A.C. (4th) 143 (Newman); Re Community
Living Niagara Falls and SEIU, Local 204 (Tacon) [1996] O.L.A.A. No.
388; and Re Hamilton Health Sciences Corporation and CUPE, Local
839 (2001), 94 L.A.C. (4th) 156 (Adams).
EMPLOYER SUBMISSIONS
[26] Mr. Smyth, for the Employer, argued that this Board is without jurisdiction
to grant the interim relief application requested by the Union. It was urged
that according to section 48(12)(i) only interim orders dealing with
procedural matters fall within an arbitrator’s jurisdiction. It states:
48(12) An arbitrator or the chair of an arbitration board, as the case may be,
has power,
….
(i) to make interim orders concerning procedural matters;
.....
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[27] Mr. Smyth acknowledged that there has been a line of cases from this Board
that have consistently determined jurisdiction over such matters beginning
with Re The Crown in Right of Ontario & OPSEU – Nield (supra).
However, it was urged that this jurisprudence must be revisited given the
decision in Re Ontario Power Generation v. Society of Energy
Professionals, [2007] O.J. No. 72 [OPG]. A review of that decision reveals
there can be no doubt that too expansive a meaning has been given the term
“procedural matters” by this Board.
[28] The Employer noted that the Divisional Court in Re OPG (supra) decision
clarified that the Re Nield case does not mean that this Board can issue any
form of interim order. It was said at paragraph 41 and 42:
In my opinion, the Court’s statement in Nield simply reiterates
the accepted principle that remedial provisions in the LRA
should be liberally interpreted. Nield does not stand for the
proposition that s. 48(12)(i) permits any form of interim order.
Nor does Nield relieve an adjudicator from his or her obligation
to employ the various tools of statutory interpretation to discern
the meaning of a remedial provision.
One interpretive tool available to the arbitrator was to look at
the legal meaning of “procedural matters” (Ruth Sullivan,
Sullivan and Driedger on the Construction of Statutes, 4th ed.
(Markham: Butterworths, 2002) at 47). A “procedural matter”
is a matter of “procedure”. “Procedure” relates to how a
proceeding is conducted. Black’s Law Dictionary, 8th ed.,
defines “procedure” as “1. A specific method or course of
action. 2. The judicial rule or manner for carrying on a civil
lawsuit or criminal prosecution.” The legal meaning of
“procedural matters” therefore does not include substantive
relief. (emphasis not mine)
[29] The Employer also relied upon comments made by Divisional Court after it
considered the legislative history of section 48 of the Act. At paragraph 45 it
was said:
…..These amendments curtailed the power of arbitrators to
make interim orders by explicitly removing their ability to grant
“interim relief”, by removing their ability to make orders that
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they “consider appropriate”, and by limiting the scope of
interim orders to “procedural matters”. In my opinion, this
suggests that the Ontario Legislature did not intend that an
“interim order concerning procedural matters” would include
interim relief that an arbitrator considers appropriate in the
circumstances.
[30] As the interim relief being sought by the Union in this case is substantive
and not procedural in nature, this Board lacks the jurisdiction to grant the
request, according to the Employer. In the alternative, in the event that this
Board is of the view that it has the jurisdiction to grant the Union’s interim
relief request, the Union has not met the necessary test that has been
established for interim orders. An applicant making such a request must be
able to show:
• There is an arguable case on the merits
• The balance of harm or inconvenience is favourable to the applicant;
and
• An interim order is required on an urgent basis.
[31] The Employer contended that the balance of harm favours it in this case and
not the Union. Further, there has been no proof provided that this order is
required on an urgent basis.
[32] The WSIB set out in some detail in its declarations that it is undergoing a
significant organization change. Those changes are causing the employee
movement that is at the heart of these grievances.
[33] In particular, the Employer contested the Union’s assertion that choices
made by employees are effectively permanent and cannot be undone in the
event the grievances succeed. The claims found in various declarations
provided to this Board in this regard are highly speculative and inconsistent
with the Employer’s declarations. Simply put, it is not a fact that allowing
130 days to expire prior to having employees move will lead to fewer
employees left in the workplace. This speculative claim is insufficient to
ground an interim order. Further, contrary to what has been suggested by the
Union, employees continue to have choices for the entire period of 130 days
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irrespective of what occurs during that time. Again, the Union has not
established that there is harm that cannot be remedied on a retroactive basis.
A monetary award would be a sufficient remedy.
[34] The Employer also took issue with the Union’s contentions regarding
emotional and psychological stress to employees in the workplace. Indeed,
the Union did not and could not establish that an employee who received a
lay-off notice due to the early bumping practice would not have received a
lay-off notice even if the 130 days’ notice period had expired before the
bumps occurred. There is no direct evidence before this Board of stress
caused by an early bump. For stress to be considered, direct evidence is
necessary. Unlike Re The Crown in Right of Ontario (Ministry of
Correctional Services and OPSEU – Sammy et al (supra) relied upon by
the Union, there is identifiable organizational harm to the employer in this
instance.
[35] Mr. Smyth suggested that with the exception of those employees who chose
to take a Voluntary Exit package, employees are not harmed financially as
suggested by the Union. Salaries are red circled until the salary amount is
regained and there is one- year general increase in wages. Clearly, no harm
will be done during the course of the litigation of these grievances that
cannot be remedied.
[36] The Employer rejected the Union’s contention that it has not given the
Union all of the information to which it is entitled under the Collective
Agreement. Further, it takes issue with the assertion that the Union cannot
represent its members adequately.
[37] The Employer asked the Board to reject the Union’s request because much
of the interim relief requested is precisely the remedy being sought on the
merits of the grievances. This Board has consistently dismissed applications
where the relief sought touched upon an issue central to the dispute or was a
substantive matter. In instances where the interim order cannot be separated
from the substantive issue, the request has been denied.
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[38] Mr. Smyth also submitted that the Union has failed to show that that there is
an urgent need for the interim relief. The Employer waived a step meeting in
the grievance procedure to allow the Union to directly refer these matters to
the Board for a scheduled hearing in November or December of 2012.
Unfortunately, the Union advised that its counsel was not available until
2013 revealing that the Union itself has not treated this matter with great
urgency.
[39] The Employer relied upon some of the same cases proffered by the Union.
In addition, it asked the Board to consider Re Ontario Power General v.
Society of Energy Professionals, [2007] O.J. No. 72; Re The Crown in
Right of Ontario (Management Board Secretariat) and Ontario Public
Service Employees Union (Union Grievance), GSB#2002-0610
(Petryshen) (September 4, 2002); Re The Crown in Right of Ontario
(Ministry of Government Services) and AMAPCEO GSB#2011-3384
(Herlich); Re The Crown in Right of Ontario (Ministry of
Transportation) and OPSEU GSB#2002-2332 (Abramsky); Re The
Crown in Right of Ontario (Ontario Liquor Control Board) & Ontario
Liquor Control Boards Employees’ Union (McIlwain) GSB#2003-2077
(Watters); Re Chatham-Kent Board of Health and Ontario Nurses’
Association (2006), 151 L.A.C. (4th) 76 (Crljenica); Re Toronto Transit
Commission and A.T.U. Local 113 [1995] O.L.A.A. No. 1063; and Re
The Crown in Right of Ontario (Ontario Human Rights Commission)
and OPSEU (Fox et al) GSB#2001-0507 (Stewart).
UNION REPLY SUBMISSIONS
[40] 32. Ms. Phillips, in reply, said that the Employer cannot be allowed to
circumvent the Collective Agreement merely because it has a new business
plan. There have been re-organizations in the past and they have not caused
the havoc that is being wreaked in this instance.
[41] The Union again noted that at least one employee has stated that she would
not have accepted a Voluntary Exit package but for her concern that she
would not be able to successfully bump another employee when she herself
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was bumped. That type of harm cannot be remedied after what will
obviously be lengthy litigation.
[42] The Union took issue with the Employer’s assertion that its interim order
request will result in members of the bargaining unit having more rights than
they are entitled to under the terms of the collective agreement.
[43] Regarding advance notice to the Union, Ms. Phillips noted that given the
enormity of the organization changes and the notices issued to date, it is
essential that the Employer be ordered to give all appropriate information to
the Union and to engage in meaningful discussion.
[44] The Union noted that given that some of the lay-off took place in September
of 2012, economic impact will be felt by members of the bargaining unit in
the fall of this year prior to the conclusion of the litigation of the merits of
this case.
[45] The Union relied upon Re Labourers’ International Union of North
America, [2004 OLRB REP. March/April 338; Re Brick and Allied Craft
Union v. Marble, Tile & Terrazzo 2007 CanLII 16241 (ON LRB); Re
Tiercon Corp. (formerly 1675386 Ontario Inc.) v. Workers United
Ontario Council, 2011 CanLII 6254 (ON LRB); Re Canadian Pacific Ltd.
V. Brotherhood of Maintenance of Way Employees, Canadian Pacific
System Federation (1996), 136 D.L.R (4th) 289; Re Bell Canada v
Communications, Energy and Paperworkers Union of Canada, [2001]
CIRB No. 116; Re Sawyer v. Loblaw Companies Ltd., [2011] O.J. No.
5529; Re International Brotherhood of Electrical Workers Local 1574 v.
Northwestel Inc. [1986] Y.J. No. 43; Re Asociation des bibliothecaires,
professeures et professeurs de l’Universite de Moncton v. Universite de
Moncton 2008 NBBR 47 (CanLII); Re Aranas v. Toronto East General
and Orthopedic Hospital Inc., 2005 CanLII 1056 (ON SC); and Re
Practical Nurses Federation of Ontario v Mississauga Hospital, 1994
CanLII 9835 (ON LRB).
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DECISION
[46] The Employer has raised an objection regarding this Board’s jurisdiction to
grant the Union’s request for interim relief in this matter suggesting that it is
more substantive than procedural. The argument put forward by the
Employer challenges this Board’s long-standing jurisprudence in this regard.
While I understand there may be some attraction to the Employer to overturn
the Board’s view, it is not necessary for me to make such a determination
because, even assuming jurisdiction over the request, the Union’s
application is denied.
[47] Accordingly, my consideration of this request assumes, without deciding,
jurisdiction.
[48] It is interesting to note that the very considerable documentation provided to
this Board to assist in the determination of the interim request appears to be
much of the evidence that both parties will rely upon in the hearing held to
determine the merits of the grievance. Indeed, while further examples might
be referred to by either or both parties, it is difficult to imagine that the
evidence necessary for final disposition of the matters will be much more
extensive. Both the Employer and the Union gave many examples of how
various employees have been or might be affected. Additionally, the
Employer outlined how it would be significantly stilted in its efforts to
implement its new business plan.
[49] As noted above, for the purpose of this request the Employer concedes that
the Union has an arguable case on the merits. Therefore, this Board is left
with an assessment of the balance of harm, which may include, as noted by
Vice Chair Herlich, in Re The Crown in Right of Ontario (Ministry of
Government Services) and AMAPCEO (Union Grievance) (supra), may
include an assessment of the “harm resulting from not granting as compared
to that resulting from granting the relief sought”.
[50] Vice Chair Petryshen was asked to consider a request for interim relief in Re
The Crown in Right of Ontario (Management Board Secretariat and
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OPSEU (supra). In that decision he succinctly summarized the appropriate
matters for consideration. He said, at paragraph 6:
In Ministry of Correctional Services and OPSEU (Sammy et al)
supra, Vice-Chair Harris referred to the two-fold test for interim
relief. The first issue for determination is whether there is an
arguable case in the main proceeding. In the case at hand the
Employer conceded that the Union has an arguable case and
that its interim relief application is not frivolous or vexatious.
The second issue for determination is whether the balance of
harm or inconvenience favours one side or the other. In Re
Globe and Mail and Southern Ontario Newspaper Guild
(Kelly), supra, the arbitrator canvassed a number of factors
relevant to the balance of harm issue, including labour relations
considerations, the ability of the unsuccessful part to be
compensated in damages, the expedition or lack thereof in
bringing the application for interim relief and the extent of the
delay before the resolution of the grievance. As the decisions in
this area suggest, the primary focus in an interim relief
application is on whether the applicant has established that
there are compelling reasons to alter the status quo. An
alteration of the status quo may be appropriate if the harm to the
applicant as the result of the alleged breach of the collective
agreement cannot be adequately addressed with a remedial
response at the conclusion of the proceeding.
[51] In the result, Vice Chair Petryshen found that the alleged breach could be
adequately addressed with damages at the conclusion of the proceeding. In
my view, after a review of the considerable documentation, including
extensive declarations, that is also true in the case at hand. The Union urged
that permanent and irreparable harm will be done if this request is not
granted. I am not persuaded on the evidence before me that this is the case.
While various changes that might arise as the result of the lay-offs may be
cumbersome to undo or otherwise remedy, if that is the final determination
of the grievances, a remedy is possible. There was nothing offered by the
Union that would lead me to find that the Board would be unable to fashion
a remedy that comprehensively redresses the facts of this case.
[52] While the Union was able to show that certain employee movement will take
place as the result of the new expedited bumping practice, it did not prove
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that this early movement takes away the choices employees have under the
Collective Agreement. As noted by the Employer in one of the declarations,
having been bumped at a time other than the end of the notice period does
not disentitle employees of their rights under Article 6 of the Collective
Agreement for the remainder of their working notice period.
[53] Both the Employer and the Union addressed the matter of stress upon the
members of the bargaining unit. The Union asserted that employees are
being unduly stressed by the expedited process. The Employer contended
that in various conversations with employees it has been communicated by
affected individuals that action taken “sooner rather than later” is a better
method of proceeding with the lay-off process. These statements are difficult
to reconcile in this interim relief process.
[54] Taking all of the evidence into account including this retention of Collective
Agreement rights for those employees in receipt of lay-off notices, count, I
am not persuaded that the balance of harm favours the granting of interim
relief.
[55] This is not a matter such as the series of cases before Chair Stewart, in Re
The Crown in Right of Ontario (Ministry of Government Services &
OPSEU & AMAPCEO (supra) where there was no possible way to undo or
reverse the contested employer action. In those cases she found that in the
event the requested interim relief was not granted, certain employees would
be fingerprinted and be subjected to other security checks with possible
credit rating implications. Those actions could not be undone once
undertaken. Those facts are considerably different than the matters at hand.
[56] In arriving at my decision to deny this application I am also mindful that the
interim relief sought for each of the three grievances is virtually identical to
the relief sought on the face of the grievances. In other words, what is being
requested by way of interim relief is the same as will be requested from the
Board seized with the ultimate disposition of the matters. Boards of
Arbitration tend to be reluctant to order interim relief that has the appearance
of being dispositive of the very matter at issue between the parties.
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[57] The litigation of the merits of these grievances has begun. The parties
expressed a wish to proceed in as expeditious a fashion as possible.
Hopefully that will occur and a final resolution will not be as far into the
future as the Union feared.
[58] For all of those reasons, the application for interim relief is denied.
Dated in Toronto this 1st day of March 2013.
Felicity D. Briggs, Vice Chair